Michael Keaveney v. Brookline, Town of - Town Clerk (SPR 20231883)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2023 SPR23/1883 Kerry Fleming, Esq. Town Counsel Town of Brookline 333 Washington Street Reading, MA 01867 Dear Attorney Fleming: I have received the petition of Michael Keaveney, of the Brookline Police Association, appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 30, 2023, Mr. Keaveney requested, investigative report and intake form related to an investigation conducted by Town Counsel. The Town responded on July 17, 2023. Unsatisfied with the response, Mr. Keaveney petitioned this office and this appeal, SPR23/1883, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Town’s July 17st Response In its July 17, 2023 response, the Town cited Exemption (c) of the Public Records Law in One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Kerry Fleming, Esq. SPR23/1883 Page 2 August 28, 2023 support of the redactions made to the records. The Town identified the records as follows: “t]he Town is in possession of two documents potentially responsive to your request: (1) An Executive Summary of the Investigation (the ‘Executive Summary’); and (2) An Investigation Report.” Current appeal In his appeal, Mr. Keaveney asserts, “[o]ur public records request sought a copy of an internal investigation into allegations of law enforcement misconduct. Specifically, both the complainant and the accused are sworn law enforcement officers who were acting in the performance of their duties during the incident in question. Any and all witnesses are also sworn police officers who were on duty at the time of the incident. The incident in question involved a dispute regarding the on duty conduct of a patrol officer, and the manner in which the on duty Lieutenant believed the incident should be handled. The records request filed by the union in this case sought a copy of the written complaint intake form, and also a copy of the investigative report. The documents were produced, but heavily redacted pursuant to ‘exemption C’ of the public records law.” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number).

Kerry Fleming, Esq. SPR23/1883 Page 3 August 28, 2023 This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its response, the Town advised “... please find the attached documents that are fully responsive to your request. Please be aware that the complaint and investigative report are redacted to protect the confidentiality and privacy of the complaining party and the accused employees, as made necessary by the privacy exemption (c) of the public records law. The Town further advised, “Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003) makes clear that complaints, such as the one you request, constitute public records, thus requiring their disclosure. Additionally, the investigative report is produced because the public records law explicitly states that the privacy exemption (c) ‘shall not apply to records related to a law enforcement misconduct investigation’.” In camera inspection In order to facilitate a determination as to the applicability of the Town’s claims to redact a portion of the records pursuant to Exemption (c) of the Public Records Law, the Town must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Kerry Fleming, Esq. SPR23/1883 Page 4 August 28, 2023 Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Michael Keaveney